Gaertner v. Heyl , 179 Pa. 391 ( 1897 )

Opinion by

Mr. Justice Williams,

William A. Heyl was the landlord of the plaintiff, and Mc-Caffrey, the other defendant, was the agent and collector for Heyl. In the Spring of 1893, and shortly before the close of the then current year, Heyl had a new form of lease prepared, changing the terms, and somewhat increasing the burdens of the tenancy of Gaertner. This was brought to the plaintiff’s office by McCaffrey who requested him to sign it. This the plaintiff refused to do. Other interviews were had between them in which the agent insisted that the new lease must be signed, and the plaintiff as stoutly insisted that he would not sign it. At length McCaffrey left with the plaintiff a copy of the new lease, signed by Heyl, and gave notice that he should call for it within a day or two, and that it must be signed. When he next called the plaintiff says he took down the lease from a pigeon hole, changed its terms to make them conform to those of the old lease, signed it and handed it to McCaffrey, who took it and went out. When Heyl received it he refused to aceept it and within two or three days had a prosecution instituted before a justice of the peace against Gaertner for forgery. The affidavit on which the warrant issued was made by McCaffrey.

When the case reached the grand jury the indictment was returned not a true bill and the costs were imposed by them on the prosecutor. Some time afterwards this action was brought against the defendants for malicious prosecution. Upon a showing of the facts now stated it became the duty of the defendants to show that they had probable cause for the prosecution for forgery. For this purpose they relied on the fact that an alteration was made in the lease while it was in Gaertner’s hands and on the advice of an attorney, that the alteration of the paper was a forgery. As there was no denial that the alteration was made before the signing by Gaertner, and the delivery of the paper to McCaffrey, it was contended that the alteration was not a crime of any sort, but the exercise of a clear legal right; that the paper did not become a contract until he had signed it, and that whether he would sign it as it was presented to him, or insist upon such change in its terms as would give it the same effect as the lease then existing, was for him to determine.

Upon this question the defendants’ counsel asked the learned trial judge to instruct the jury that “it is immaterial whether the alteration was made before the plaintiff signed the lease, the same having been executed by Heyl.” This point was affirmed. Whatever the learned judge may have intended by this answer, it was calculated to lead the jury to believe that in the judgment of the court the alteration in the terms of the lease by the tenant at any time after it had been signed by Heyl was a forgery. Forgery is the fraudulent making or alteration of a writing to the prejudice of the right of another. The proffered lease was not a contract till signed by the.tenant and delivered to the landlord or his agent. The landlord had no rights under it against anybody. It was of no more value to him than so much blank paper until the tenant had assented to its provisions by executing it. It was a proposition to let the rooms to Gaertner on the conditions named in the paper. This proposition he distinctly declined, .and modified it in accordance with his own ideas of what it should be. As so modified he signed it and sent it to Heyl. This did not bind Heyl until he accepted it. It was a proposition by Gaertner to rent the rooms on the terms stated in the modified lease which Heyl was at liberty to refuse, and as it seems did refuse. The change made by Gaertner in the terms of the lease was not a forgery. It did not affect the rights of the landlord in the slighest degree, and the jury should have been distinctly instructed to that effect.

The fourth assignment of error, must also be sustained. In the portion of the charge embodied in this assignment the learned judge instructed the jury that the change in the form of the lease, if made after Heyl had signed it and with a view to mislead McCaffrey, would afford probable cause for charging Gaert ner with the crime of forgery. This was clearly error. It might, upon the circumstances assumed, have shown a dishonest purpose, but it did not show a forgery, or disclose any reason for charging such a crime upon the tenant. On the contrary the letter of the justice by whom the warrant was issued, written on the morning before the warrant was issued, looks very much as though the prosecution had been resorted to to compel compliance by the tenant with the wishes of the landlord, and secure the execution of the new lease in the form in which it had been originally presented to him. If the jury should so believe, this would afford proof of malice and justify a verdict in favor of the plaintiff.

No question as to the effect of the advice of counsel is raised by the assignments of error, and we are not called upon to consider that branch of the defense made in this case. Ordinarily the first step in an attempt to show probable cause for charging a crime upon a particular person is to show the commission of the particular crime by some person, and then give the circumstances which seemed to connect the person proceeded against with the crime so committed. Thus if A should prosecute B for robbery, and failing to establish his guilt should be sued for malicious prosecution, he would show the fact of the robbery, and the reasons that led him to believe that B was the robber. But if he failed to prove that he had been robbed, it is not easy to see how he could show probable cause for the prosecution of B for a crime that had not been committed. But in this case it may be that an honest belief that a forgery had been committed, if reached after such examination and inquiry as a reasonably prudent man should make before assailing the character of his neighbor, would stand in the place of the crime itself for the purposes of this case. Whether this be so or not is a question not raised in this record. The third assignment is also sustained. No man has a right to launch a criminal prosecution against another upon the circumstances stated in the instruction complained of in this assignment. McCaffrey’s statements to Heyl that Gaertner had imposed upon him in the matter of the lease, is not probable cause for charging the crime of forgery upon Gaertner. It is a circumstance that, connected with others, would be competent to put in evidence, but standing alone, it is not enough. It did not furnish probable cause.

The judgment is reversed and a venire de novo awarded.